On Wednesday the U.S. District Court for the Southern District of New York granted HathiTrust’s motion for summary judgment on the copyright infringement claims, dismissing the claims brought by the Authors Guild. The HathiTrust Digital Library (“HDL”) is a massive, Google-affiliated book-digitization project led by academic institutions such as the University of California and Indiana University; it had scanned and placed books in the HDL without consulting rights holders. The Authors Guild claimed this violated § 106 and § 108, and sought an injunction against further distribution of the works and impoundment of already scanned works.

The district court held that HathiTrust’s digitization constituted fair use. HDL provides full-text search for copyrighted works for which the rights holder has granted permission and for works in the public domain; 73 percent of the trust’s 10 million books are copyrighted. The affiliated universities have been using HDL for full-text searches, preservation, and access for people with certified print disabilities. Four universities also created full-text access for “orphan works,” which are in-copyright works for which the rights holders are unavailable or otherwise unidentifiable. Google has scanned the books for HDL as part of its Google Books project; a separate litigation between the Authors Guild and Google is stalled on appeal.

Publishers Weekly provides an overview of the case. At Laboratorium, James Grimmelmann predicts the Authors Guild has little chance of a successful appeal due to what he views as the clear victory awarded to HathiTrust and print-disabled codefendants.

Fair use is a defense to a prima facie case of copyright infringement when the copyrighted work is used for certain purposes, including scholarship, teaching, and research. Judge Baer found that the HDL had made transformative uses of the copyrighted material by making the works searchable and making them available to print-disabled persons, favoring a finding of fair use despite the fact that HDL copied entire works, some of which were creative works. Rejecting Authors Guild arguments that the saved expenditures through HDL constituted commercial use, Judge Baer held that HDL fit under fair use as neither the universities nor Google were using the content for commercial use. Judge Baer also considered that a market for digitized works for print-disabled persons did not exist, and would be prohibitively expensive to develop, also favoring a finding of fair use.

Additionally, under the Americans with Disabilities Act, educational libraries have a mandate to provide equal access for the print-disabled; section 121 of the Copyright Act stipulates a limitation on exclusive rights for such purposes. For this reason, the University of Michigan was authorized to provide searchable text and access for the print-disabled.

This decision accompanies last Thursday’s settlement between Google and the Association of American Publishers (“AAP”) after seven years of litigation. The settlement gives U.S. publishers leeway to either make available or remove their works digitized by Google in its Library Project. U.S. publishers can continue to make individual agreements with Google regarding use for their digitally-scanned works. The books scanned to the Library Project are now included in the current permission of 20% access for users on Google Books, requiring purchase on Google Play for further access. Further terms of the settlement remain confidential. According to Wired, the Google/AAP settlement is a “huge concession” from Google, and that this may weaken the Authors Guild’s stance in its ongoing conflict with Google.

Preserving fair use for projects like HDL is likely to benefit the “goals of promoting the Progress of Science” as well as offering equal opportunity to the print-disabled, according to Judge Baer. Slip op. at 21 (quoting Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 608 (2d Cir. 2006)). This case is likely to ease the process of making more content available online for Google and interested organizations, such as universities. On the other hand, this case serves as a precedent against publishers asserting copyright in online academic libraries. As noted above, this case may affect the pending Authors Guild v. Google case, either making it more likely to settle or result in a ruling for Google. Laboratorium noted that this decision, when combined with the recent decisions regarding Georgia State’s e-reserves and UCLA’s practice of streaming video, indicate that universities’ use of fair use arguments represents an increasingly successful strategy.

One Response so far.

… and the ruling on Fair Use applies to just whom? The Defendants, all educational institutions, or anyone who is asked to make an accessible copy of a book for a person who is print disabled when such person who is print disabled does not previously own or have been gifted a copy of that book?

P33 of the O&O notes what the Defendants might do relying upon fair use “in the event they are not an Authorized entity”. Doesn’t fair use apply to everyone?